Bank of Alabama v. Whitlow , 6 Ala. 135 ( 1844 )

COLLIER, C. J.

-1. It was not necessary that the defendant should have participated in the arrangement made in respect to the cotton, between the plaintiff and the drawer of the bill. The bill was negotiated by the bank at the instance of the drawer; and although the legal title is deduced immediately through the defendant, he never received value for it, and .may-set up any defence arising out of the circumstances under which it was acquired.

We cannot assume that the transaction between the plaintiff and the drawer, in respect to the cotton, was verbally made. It was not necessary for the plea to be explicit on this point, but it was entirely competent to state the facts without reference to a writing, and then introduce the written evidence, if it exist.

The second plea substantially alleges, that the plaintiff received the receipt of a ware-house-man at Demopolis, for ten bales of cotton deposited in his ware-house, previous to the negotiation of the bill, by the drawer; that the cotton was of the value of one thousand dollars; the plaintiff agreed with the defendant to take and sell the cotton, and apply the proceeds thereof to the payment of the bill, before he should be called on for the payment of any part of it — all which, the plaintiff had failed to do. This plea would admit proof, which in the absence of countervailing evidence, would furnish a bar to the action, and was, therefore, rightly sustained. But, whether it would not be competent for the plaintiff to show the destruction of the cotton, its removal by either the drawer or the defendant, or by some one having a pai'a-mount claim, in the present aspect of the case, it is unnecessary to consider.

2. Treating of the evidence necessary to authorise a recovery against the drawer or indorser of a bill, Mr Chitty says, “A protest apparently under the seal of a notary public, and made abroad, need only be produced, and proves itself without showing by whom it was made.” [Chitty on Bills, 9 Am. ed. 642.] — • At the common law, the protest of an inland bill was not evidence in itself, but required proof to establish the facts recited in it. — • But, in this respect, there is no difference in this State between a foreign and an inland bill. The statute declaring, that the protest of a notary of an inland bill of exchange, or other protesta-ble security, setting forth a demand, refusal, non-acceptance, or non-payment, and that notice thereof was given, either personally or otherwise, to the parties entitled thereto, shall be evidence of such facts. [Clay’s Dig. 87, § 51, 380, § 9.] The protest in the case at bar, is apparently subscribed and sealed by a notary, commissioned, and resident in this State, and whose official character we must judicially know; and according to the law laid down by the learned author we have cited, it was admissible evidence.— Upon the protest being read to the jury, it would be competent for the defendant to show, that it is not the act of the notary, whose act it appears- to be. The fact that it is subscribed in the hand writing of some one else than the notary, is very unsatisfactory to prove that it is not genuine, for he may have employed an amanuensis. If the impression indicates that it was the seal he was accustomed to use, this should go far in the absence of direct and positive proof, to repel the imputation of spuriousness, whatever might be the evidence in respect to the hand writing.

The case of the Onondaga Bank v. Bates, [3 Hill’s Rep. 53,] which was cited by the defendant’s counsel, does not sustain the decision of the circuit court. In that case, the court merely determine, that the duties of a notary in the presentment of a promissory note, or a bill of exchange, cannot be performed by his clerk, or a third person; and that a protest stating that the notary caused the note to be presented, &c. was insufficient. In the case before us, we have seen that the protest is regular upon its face, and that it was improperly excluded.

The judgment is consequently reversed, and the cause remanded.